Wednesday, March 24, 2010

Health Care Reform Lawsuits

I will keep an updated list of lawsuits against the new healthcare reform law in this post with comments on progress.

last updated 11/14/2011
Breaking News - Supreme Court Agrees To Hear ObamaCare Cases.

The Score Card

Total number of lawsuits - 28
Active - 21
    Undecided - 7
    Decided with Appeals - 11
    Decided pending appeal - 3
Decided-Closed - 7

Decided - 21
    Dismissed/Judgement for Defendant - 18
    Judgement for Plaintiff - 3

Decided Appeals - Circuit Court - 5
    Upheld/Overturned or Dismissed for Defendant - 4
    Upheld or Overturned for Plaintiff - 1

States that are actively or about to sue (29):
(FL et al) AK, AL, AZ, CO, FL, GA, IA, ID, IN, KS, LA, MI, ME, MS, ND, NE, NV, OH, PA, SC, SD, TX, UT, WA, WI, WY (individual suits) VA, MO, OK

States that will not (as of today) sue (22):

State Lawsuits

State of FL et al v. US DHHS et al
3:2010-cv-00091 (PACER Locator - login required) (Link to Complaint)
3/23/2010 filed - Current plaintiff states (26): FL, SC, NE, TX, UT, LA, AL, MI, CO, PA, WA, ID, SD, IN, ND, MS, AZ, NV, GA, AK, IA, KS, ME, OH, WI, WY
National Federation of Independent Business also added
Additional interested state parties via briefs
For the plaintiffs
Govenors: MN, RI
For the defendants
States' Attorneys General: OR, IA, VT
Govenors: CO, MI, PA, WA (in conflict with their AG's)
10/14/2010 Motion to Dismiss denied on counts 1 (individual mandate - Commerce Clause) and 4 (medicaid impacts - 10th Amendment)
12/16/2010 Hearing on motion(s) for summary judgement
1/18/2010 GA AG Joins (Govenor was part of original states), IA Govenor Joins (in conflict with AG). KS, ME, OH, WI, WY Join.
1/31/2011 Summary Judgement for Plaintiffs on count 1 (individual mandate) - Individual Mandate struck down as unconstitutional
2/28/2011 Appealed to 11th Circuit by non-party petitioner. 11-10894-H
3/2/2011 Judge stays order......contingent on the defendants submitting a motion for expedited appeal with the appelate court or SCOTUS within 7 days.
3/8/2011 Appealed to 11th Circuit by defendants. 11-11021.
6/8/2011 11th Circuit: oral arguments
8/12/2011 Upheld in Favor of Plaintiff

Commonwealth of VA v. Sebelius
3:2010-cv-00188 (PACER Locator - login required) (Link to Complaint)
3/23/201 filed
8/2/2010 Motion to dismiss denied
10/18/2010 Hearing on motions for summary judgement
12/13/2010 Summary judgement for Plaintiffs - Individual Mandate struck down as unconstitutional
1/19/2011 Both parties appeal to the 4th Circuit (11-1057, 11-1058)
1/20/2011 Appeals case consolidated into 11-1057
1/26/2011 Expedited briefing granted and oral argument scheduled for May 10-13, 2011. Case will be argued in conjunction with Liberty University, Inc. et al v. Geithner et al
2/9/2011 Petition to SCOTUS by Plaintiff 10-1014
4/25/2011 Petition to SCOTUS denied
9/8/2011 4th Circuit: Dissmissed - Standing

Kinder et al v. Department of Treasury et al
1:2010-cv-00101 (PACER Locator - login required)
7/7/2010 Filed - suit by MO Lt Gov Kinder and others both as a private citizen and in his official capacity of Lt. Gov. as the government advocate for the state's elderly.
7/9/2010 Motion to intervene and for partial dismissal filed by MO AG claiming only he can advocate legally for the MO state government.
8/20/2010 Motion to intervene withdrawn
1/18/2011 Motion to Dismiss
4/26/2011 Dismissed - Jurisdiction
4/29/2011 Appealed to the 8th Circuit 11-1973
10/17-10/21/2011 8th Circuit: oral arguments

Pruit v. Sebelius et al
6:2011-cv-00030 (PACER Locator - login required)
Oklahoma suit
1/7/2011 Announced
1/24/2011 Filed
3/28/2011 Motion to Dismiss

Individual Lawsuits

Thomas More Law Center, et al v. POTUS et al
2:2010-cv-11156 (PACER Locator - login required) (Link to Complaint)
3/23/2010 Filed
10/21/2010 Dismissed
12/15/2010 Appealed to 6th Circuit 10-2388
6/29/2011 Upheld in Favor of Defendant
7/27/2011 Appealed to SCOTUS 11-117

Liberty University, Inc. et al v. Geithner et al
6:2010-cv-00015 (PACER Locator - login required) (Link to Complaint)
3/23/201 Filed
10/22/2010 Hearing on Motion to Dismiss
11/30/2010 Dismissed
12/3/2010 Appealed to 4th Circuit 10-2347
1/26/2011 Oral argument scheduled for May 10-13, 2011. Case will be argued in conjunction with Commonwealth of VA v. Sebelius
9/8/2011 4th Circuit: Dissmissed - Standing

New Jersey Physicians, Inc. et al v. Obama et al
2:2010-cv-01489 (PACER Locator - login required)
3/24/2010 Filed
7/28/2010 Motion to dismiss
12/7/2010 Dismissed
12/14/2010 Appealed to 3rd Circuit 10-4600
6/22/2011 3rd Circuit: oral arguments
8/3/2011 Upheld in Favor of Defendant

Baldwin et al v. Sebelius et al
3:2010-cv-01033 (PACER Locator - login required)
5/14/2010 Filed
8/27/2010 Dismissed
9/1/2010 Appealed to 9th Circuit 10-56374
9/17/2010 Petition to SCOTUS 10-369
11/8/2010 Petition to SCOTUS denied

Mead et al v. Holder et al
1:2010-cv-00950 (PACER Locator - login required) (Link to Complaint)
6/9/2010 Filed - suit by the American Center for Law and Justice
8/10/2010 Plaintiff Motion for Summary Judgement
8/20/2010 Motion to Dismiss
1/31/2011 Hearing on Motion to Dismiss
2/22/2011 Dismissed
2/25/2011 Appealed to DC Circuit 11-5047
9/23/2011 DC Circuit: oral arguments

Physician Hospitals of America, et al v. Sebelius
6:2010-cv-00277(PACER Locator - login required)
6/3/2010 Filed - Another provider initiated lawsuit
8/17/2010 Motion to Dismiss and Defendant Motion for Summary Judgement
9/29/2010 Hearing on Motion to Dismiss and (defendant) Motion for Summary Judgement
11/24/2010 Bench Trial Cancelled.
2/15/2011 Plaintiff Motion for Summary Judgement
2/18/2011 Motion to Dismiss denied (jurisdiction issue only)
3/31/2010 Summary Judgement for Defendant
6/9/2011 Appealed to the 5th Circuit 11-40631

Purpura et al v. Sebelius et al
3:2010-cv-04814 (PACER Locator - login required) (Link to Complaint)
9/20/2010 Filed
10/7/2010 Case reassigned
12/9/2010 Motion for summary judgement (plaintiffs)
1/17/2011 Cross Motion to Dismiss
1/18/2011 (postponed) Motion for summary judgement to be decided
2/22/2011 (sched) Motion for summary judgement and any motion to dismiss to be decided
4/22/2011 Dismissed - Standing
5/12/2011 Appealed to 3rd Circuit 11-2303

U.S. Citizens Association et al v. Obama et al
5:2010-cv-01065 (PACER Locator - login required) (Link to Complaint)
5/12/2010 Filed
8/12/2010 Motion to Dimiss
9/1/2010 Ammended Complaint
9/16/2010 Second Amended Complaint
10/8/2010 Motion to Dismiss
11/23/2010 Motion to Dismiss count 1 (Individual Mandate unconstitutional) denied. Counts 2-4 dismissed.
1/24/2010 Cross Motions for Summary Judgement
2/28/2011 Court issues final judgement on counts 2-4 so that they may be immediately appeal, if desired. Count 1 remains open.
3/18/2011 Dismissal of counts 2-4 appealed to 6th circuit. Count 1, Individual Mandate, still remains before district court.
4/27/2011 Case suspended "pending a ruling by the Sixth Circuit in Thomas Moore Law Center vs. Obama"
7/1/2011 Summary Judgement for Defendant per precedent of 6th Circuit decision in Thomas Moore Law Center vs. Obama
7/27/2011 Appealed to 6th Circuit 11-3798

Peterson v. USA et al
1:2010-cv-00170 (PACER Locator - login required)
5/4/2010 Filed - Claims assumed reductions in Medicare benefits and increased costs are unconstitutional.
8/16/2010 Motion to dismiss
12/20/2010 Ammended Complaint
3/10/2011 Hearing on Motion to Dismiss
3/30/2011 Dismissed - subject matter jurisdiction

Bellow v. US DHHS et al
1:2010-cv-00165 (PACER Locator - login required) (Link to Complaint)
3/24/2010 Filed - First private citizen lawsuit
11/29/2010 Motion to Dismiss
12/20/2010 Plaintiff Motion for Summary Judgement
3/21/2011 Magistrate Judge recommends dismissal
6/20/2011 Dismissed - subject matter jurisdiction

Goudy-Bachman et al v. US DHHS et al
1:2010-cvs-00763 (PACER Locator - login required)
4/9/2010 Filed - 2 Pennsylvania residents
6/14/2010 Motion to Dismiss
1/24/2011 Motion to Dismiss denied as to jurisdiction, standing, and ripeness of the plaintiff's financial burden claims. Separate opinion on Motion to Dismiss as to constitutionality of the Individual Mandate forthcoming.
6/21/2011 Motion for Summary Judgement by Defendants
7/6/2011 Motion for Summary Judgement by Plaintiffs
9/13/2011 Summary judgement for Plaintiffs - Individual Mandate struck down as unconstitutional

Walters et al v. Holder, Jr. et al
2:2010-cv-00076 (PACER Locator - login required) (Link to Complaint)
4/2/2010 Filed - Three Mississippi residents
8/1/2010 Motion to dismiss
2/3/2011 Dismissed as to standing with a 30 day leave to ammend the complaint
3/4/2011 Amended complaint
4/12/2011 Motion to dismiss in part and for jurisdictional discovery

Association of American Physicians & Surgeons, Inc. v. Sebelius et al
1:2010-cv-00499 (PACER Locator - login required) (Link to Complaint)
3/26/2010 Filed
6/11/2010 Case Reassigned
7/29/2010 Motion to Dismiss
8/23/2010 Ammended Complaint
9/13/2010 Second Amended Complaint
11/12/2010 Motion to Dismiss
11/22/2010 Amended Motion to Dismiss
3/30/2011 Case reassigned

Calvey et al v. Obama et al
5:2010-cv-00353 (PACER Locator - login required)
4/7/2010 Filed - 16 Oklahoma residents
4/8/2010 Case Reassigned
8/6/2010 Ammended suit to allow class action (currently 1,162 plaintiffs)
2/15/2011 Motion to Dismiss
4/26/2011 Dismissed in part. Only some claims (related to mandate) for only the uninsured plaintiffs remain to be adjudicated.

Sissel v. US DHHS et al
1:2010-cv-01263 (PACER Locator - login required) (Link to Complaint)
7/26/2010 Filed - suit by the Pacific Legal Foundation
11/15/2010 Motion to Dismiss
6/3/2011 Case Reassigned
8/9/2011 Case suspended pending a ruling by the DC Circuit in Mead vs. Holder

Coons et al v. Geithner et al
2:2010-cv-01714 (PACER Locator - login required) (Link to Complaint)
8/12/2010 Filed - suit by the Goldwater Institute
11/15/2010 Motion for Preliminary Injunction
3/10/2011 Motion for Preliminary Injunction withdrawn
3/11/2011 Amended Complaint
4/18/2011 Motion to Dismiss
5/10/2011 Ammended Complaint
5/31/2011 Motion to Dismiss
6/13/2011 Motion to Dismiss found moot
6/20/2011 Motion for Partial Summary Judgement by Plaintiffs
8/10/2011 Motion for Summary Judgement by Defendants

Enloe et al v. Obama et al
5:2011-cv-00026 (PACER Locator - login required)
2/11/2011 Filed. This is basically the Shreeve case refiled in another district
5/31/2011 Motion to Dismiss

Potential Lawsuits

Closed Lawsuits

Taitz v. Obama
1:2010-cv-00151 (PACER Locator - login required) (Link to Complaint (applicable amended section begins page 5))
Amended filing to a "birther" lawsuit.
Motion filed to consolidate suit with St of FL et al.
4/8/2010 Motion denied
4/14/2010 Amended suit dismissed

Shreeve v. Obama et al
1:2010-cv-00071 (PACER Locator - login required)
4/8/2010 Filed - 10th Amendment case brought by an individual - interesting. Names Reid and Pelosi as defendants. (This is the suit from the TN State Rep Candidate Van Irion, who is acting as the plaintiff's attorney)
7/19/2010 Motion for peliminary injunction
7/19/2010 Suit becomes national class action w/ 25,000+ plaintiffs (including my daughter)
8/27/2010 Motion to dismiss
11/4/2010 Dismissed

Fountain Hills Tea Party Patriots, L.L.C. v. Sebelius et al
2:2010-cv-00893 (PACER Locator - login required)
4/22/2010 Filed - The Tea Party joins the fight
6/17/2010 Dismissed

Burlsworth et al v. Department of Justice et al
4:2010-cv-00258 (PACER Locator - login required) (Link to Complaint)
4/27/2010 Filed - This is the Secure Arkansas suit
8/3/2010 Motion to dismiss
9/8/2010 Plaintiffs withdraw complaint

Independent American Party of NV et al v. Obama et al
2:2010-cv-01477 (PACER Locator - login required)
8/31/2010 Filed
1/19/2011 Case Reassigned
3/7/2011 Dismissed - no proof of service

Archer v. U.S. Senate - dismissed 4/12/10. This was a complaint against "the cornhusker kickback". Case was dismissed because plaintiff did not pay fee.

Mackenzie v. Shaheen - dismissed 5/26/10. This was a suit originally filed in county court in New Hampshire and then moved to Federal District Court, which claims denial of plaintiff's due process rights by his elected representatives in relation to the "unfair means" in which the ObamaCare bill was written, debated, and voted upon. Dismissed as defendants, the plaintiff's US Senator and Congresspersons, have "legislative immunity from suit based upon legitimate legislative activities".

Additional suits listed on blog. I do not include any of these in the totals because I either can find no record of them or they are not ObamaCare cases.
Sollars v. Reid - dismissed 4/2/10. I find no record of this case on PACER
Heghmann v. Sebelius - dismissed 5/14/10. I find no record of this case on PACER
Coalition for Parity Inc. v. Sebelius - dismissed on 6/21/10. This is a case against the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity
Act of 2008, not ObamaCare.

Other News

10/26/2011 Health cases set for Nov. 10 SCOTUS Conference

Tuesday, March 23, 2010

I Feel Like Alice in Obamaland

Scotusblog opens commentary on pending healthcare reform lawsuits with this roundup

Commentators continue to speculate on the role of the Court in potential challenges to Congress’ passage of health care reform late Sunday. At the ACS blog, Simon Lazarus writes in an issue brief that mandating the purchase of health insurance is “lawful and clearly so” under the Commerce Clause and/or the General Welfare Clause. At Vanity Fair, Andrew Cohen predicts that in a possible 5-4 Supreme Court decision, Justice Kennedy and his swing vote would be “quite open and warm to the notion of federal intervention on health care.” At Jost on Justice, Kenneth Jost reviews relevant Supreme Court Commerce Clause jurisprudence and concludes that the bill is likely to survive potential legal challenges. Ashby Jones at the WSJ Law Blog also weighs in on the subject.

News organizations concur with a unified chorus of: "Legal experts say they [the lawsuits] have little chance of succeeding". Who are these legal experts and what Constitution are they looking at? I feel like I have stepped into a rupture in the space/time continuum and have been instantly transported to a much darker parallel America where Joe Biden has a gotee and the Commerce Clause of the constitution now reads:

"[The Congress shall have power] To COMPEL Commerce with foreign Nations, and among the several States"

Seriously, please, I beg of you, will some constitutional scholar come here to explain to my feeble mind how the individual mandate in Obamacare can be constitutional. I know you are out there because you keep telling everyone in the press that it is true. But I can't fathom it.

So what is next?

If the government decides that we need to emit fewer green house gases (a noble endeavor), can they now compel us to go out and buy wind generators, solar panels, and hybrid cars? I know they can incentivize us to make such purchases, but can they literally force us to? Apparently, according to the legal experts, that is simply "regulating" commerce. If the government decides that it is healthy to take some time off work each year (demonstrably true), can they now compel us to fly to Cancun for a week? I would love it if they would incentivize THAT but can they force it? It would appear so. And what if the government decides our population is too big (can you say china)? Can they compel us to purchase birth control, get sterilized, and have abortions for the general welfare? After all, those are simply different kinds of commerce.

I guess the founders had just such an exercise of federal power in mind when they wrote the commerce clause, because the legal experts all agree that such forced purchasing is in there somewhere. I can’t see it. But I’m no expert.

Monday, March 22, 2010

Would You Like a Glass of Kool-Aide?

From the “have a nice glass of kool-aide” Dept: Ha! For all of you who cheered the President’s constant sniping at the health insurance industry and bought his promise that Obamacare will end “evil insurance company practices”, this just in from Wall Street.

“The major health insurance and provider stocks leaped upward on the open, as expected. (They just acquired 32 million new customers in the most ideal way: it’s now illegal not to buy their products.)” (Francis Cianfrocca -

Thank you Obamacare supporters. Since I work for the largest (and, I suppose, inherently most evil) of those insurance companies you have given me job security for the foreseeable future. Of course, I hate this unconstitutional and despicable bill, but thanks to Speaker Pelosi and her kool-aide drinking Reps., I at least will enjoy gainful employment for the rest of whatever.

Wednesday, March 17, 2010

The "Price" of ObamaCare: Wait Times. A First Hand Example

One of the ways that health systems are measured is in terms of wait times for procedures. The knocks against government run systems is that wait times are painfully (literally) long due to inadequate doctor availability. This week, the New England Journal of Medicine published an article that predicts severe doctor shortages if ObamaCare is put into place. With the doctor availability (or lack thereof) side of the equation seeming to be inevitable, the question of wait times deserves a serious answer. If wait times truly will increase dramatically, the pain and suffering of American patients could increase proportionally. So, is it true that wait times are significantly longer in government run systems? I submit my gall bladder surgery as a case in point.

A few years ago, I finally had my gall bladder out. Although not life threatening, the status of my gall stones had come to a point where I was having painful attacks on almost a weekly basis. I could grin and bear it, but it had really come time to "get 'er done". I did not consider my situation urgent in a purely medical sense, nor did my physician consider it so. I will share the chronology of my surgery in our private health care system in a moment, but first let's look at how it might have been handled in another country.

It takes a little digging, but one can find average wait time statistics for surgeries in the various countries (or provinces) that have government run health systems. Here is a brief list of what I found for gall bladder removal (cholesystectomy):

New South Wales, Australia. Non-urgent, 3 months; urgent, 3 weeks. (2006/2007 data)
British Columbia, Canada. 3 months (No division by urgency. 2008 data)
England. 2-3 months (No division by urgency. 2004/2005 data)

Now, I know this is hardly an exhaustive study. But I think it is clear and very common knowledge that if you need an elective cholesystectomy in a government system, you are going to wait anywhere from a few weeks to a lot of months. So, what was my experience?

I had my gall stones diagnosis several years before my surgery. At that point in time, I was having only rare attacks and I could kind of manage things by diet. When the stones did cause irritation, it was often relieved with over the counter pain rememdies. That fairly quickly took a turn for the worse a few years ago. So I decided to go into the local clinic and see if I could have the problem taekn care of.

I called to set up an appointment with a general surgeon at the clinic. My wait for that appointment was...well...there was no wait. They asked if I could come in that day, and I could, and I did. The doctor did a standard physical and asked a few diagnostic questions. When he confirmed that I did indeed have gall stones and that it would be recommended that I have my gall bladder removed, we had the following conversation:

Doctor - "well I suppose you would like this done as soon as possible"
Me - "yup"
Doctor - "when are you available to have the surgery"
Me - "my schedule at work is pretty flexible, so really any time"
Doctor - "how about tomorrow"

Obviously, I agreed. Just as with my initial appointment, my wait time was virtually 0 days. But it gets even more impressive. The doctor said that I would need to have a pre-operative physical before surgery, and that would need to be done "today". He talked to the nurse coordinator, they scheduled the surgery at teh hospital of my choice (I had three to choose from), and then scheduled my pre-op physical at thier nearby sister clinic for an hour later.

Now, I know that my experience may also be a slight outlier. But I have no doubt it is fairly representative of how surgery gets handled here in America with our fully private system. My experience supports the anecdotal and statistical evidence that government run systems are far less responsive to patient needs, especially the needs for diagnostic testing and treatment. ObamaCare would change all of that, adversely altering wait times and a variety of other health care quality factors.

Friday, March 12, 2010

My Objections to Obamacare: an Open Letter to Congress

The people at have made it possible for anyone to email their representative and all of the blue-dog Democrats in the House of Representatives regarding President Obama and the Democrats' healthcare reform bill. They even allow you to edit the default message to make it a personal appeal. Here is what I wrote to congress:

I write to encourage you to oppose government-run health care and any legislation which might broaden the federal government's control over my health care. I hope that you fight against health care legislation that would drive up costs, diminish quality and limit access.

I am a person who has been touched by the healthcare industry all my life. My father was a physician - an anesthesiologist - who even in the 70's saw upwards of 20% of his gross income go to malpractice insurance premiums. In my youth I worked as a nursing assistant on the delivery side of healthcare, caring for patients in both hospital and long term care settings. My wife also worked in healthcare delivery at the practitioner level, running a doctors office for the first few years of our married life. For the last 25+ years, I have worked on the payer/managed care side of the healthcare equation. Currently, I am a financial analyst for one of the top 3 healthcare companies in the world. I not only manage forecasting and budget for a $500M piece of our business, but work with our actuaries to develop premium rates.

When I weigh all of this experience against the current proposed legislation, and more importantly, the rhetorical basis for that legislation, I am frankly shocked at both the inadequacy of the bill to address the REAL healthcare reform needs of this country and the deceitful and inaccurate claims about our wonderful healthcare system. At the core of my disgust is the failure of the bill to address the true problem in the current system - cost. Defensive medicine and out of control malpractice rewards are a large factor in driving costs up. These constantly rising costs in turn are the major contributor to insurance premium rate increases. Government regulation in the form of mandated benefits also adds to the cost equation. And a lack of competition because of rigid, state based obstacles to product marketing removes the last hope of pushing costs down.

The current bill not only fixes none of these real problems but will exacerbate a good many of them. As doctors flee the system because they can't survive financially, the quality of and access to care will go dramatically down and cause an actual increase in prices due to supply and demand dynamics. All of the “pork” in the bill simply heaps waste on top of bad policy.

For all of these reasons I implore you to take the sensible and responsible approach to the current healthcare bill and vote against it. I hope you get that opportunity soon so that you and your colleagues, our servants in the machine of government, can turn your attention to issues that really are affecting our country in this current tumultuous time – jobs and the economy.